Wyers v. Arnold

• Decision Date: 14 February 1941
• Docket Number: 37173
• Citation: 147 S.W.2d 644,347 Mo. 413
• Parties: Charles Wyers, Appellant, v. Glendy B. Arnold, Judge of the Probate Court of the City of St. Louis
• Court: Missouri Supreme Court

147 S.W.2d 644

347 Mo. 413

Charles Wyers, Appellant, v. Glendy B. Arnold, Judge of the Probate Court of the City of St. Louis

No. 37173

Supreme Court of Missouri

February 14, 1941

Appeal from Circuit Court of City of St. Louis; Hon. Harry F Russell, Judge.

Reversed and remanded (with directions).

Detjen & Detjen and Morton K. Lange for appellants.

No will shall be admitted to probate in this State unless it shall have been presented to the probate court or judge or clerk thereof, in vacation, within one year from the date of the first publication of the notice of granting letters testamentary or of administration. R. S. 1929, sec. 531; Buckholz v. Cunningham, 100 S.W.2d 447. A will is of no force or effect until it has been probated. R. S. 1929 sec. 530; Farris v. Burchard, 242 Mo. 8, 145 S.W 825; Snuffer v. Mowerton, 124 Mo. 657; Graham v. Graham, 297 Mo. 290, 249 S.W. 37; Armstrong v. Lear, 25 U.S. 169; Marx v. Loeb, 153 So. 266; Moore v. Lewis, 21 Ala. 580. The right to inherit property is not a natural right, but a right conferred by the laws of the sovereign. The State may foreclose the right absolutely or may grant it upon certain conditions which must be complied with before the right to descent and distribution whether under the law or by will can exist. There was no common law right to dispose of or to take property by will. Such rights are purely statutory and can only be exercised in the manner prescribed by statutes. State ex rel. McClintock v. Guinnatti, 204 S.W. 806, 275 Mo. 298; Barnett v. Bellows, 287 S.W. 604, 315 Mo. 1100; State ex rel. Burnes Natl. Bank v. Duncan, 257 S.W. 784, 302 Mo. 130. Although the general rule is that personal property is bequeathed according to the law of the domicile of the testator, every State has the right as an incident to sovereignty, the power to establish and to regulate the succession of all property, real and personal, movable and immovable within its territory. Where a local law providing for the probate of wills and the proceedings incident thereto differs from the law of the domicile, the local law applies to the extent of the difference. Higgins v. Eaton, 202 F. 75; Minor v. Cardwell, 37 Mo. 350; Blackstone v. Miller, 188 U.S. 189, 23 S.Ct. 277.

Julius T. Muench, Norman Begeman and George P. Mueller for respondent.

(1) Respondent did not exceed his authority or the jurisdiction of the probate court in allowing probate of the will of Babette Orth subsequent to the expiration of one year following the publication of notice to creditors because: (a) The validity and the probate of the will of Babette Orth, and the succession of her property must, by virtue of the comity observed between the United States and Germany, be tested by the laws of Germany. Story's Conflict of Laws (3 Ed.), secs. 379, 383; Dixon's Executors v. Ramsay's Executors, 3 Cranch, 319; Grote v. Pace, 71 Ga. 231; A. L. I. Restatement of the Conflict of Laws, sec. 306; Bishop v. Bishop, 257 N.Y. 40, 80 A. L. R. 1198; Woerner on Administration, pp. 551, 758, 765; Vogel v. New York Life Ins. Co., 55 F.2d 205; Chadwick's Case, 80 N.J.Eq. 471; Higgins v. Eaton, 188 F. 938; Shaw v. Grimes, 187 Ky. 250, 218 S.W. 447; 1 Schouler on Wills (6 Ed.), secs. 16, 59; State of California v. McGlynn, 20 Cal. 231; Bogardus v. Clark, 4 Paige, 623; Cohen v. Herbert, 205 Mo. 537; Martin v. Stovall, 103 Tenn. 1, 48 L. R. A. 130; Evansville Ice & Cold Storage Co. v. Winsor, 48 N.E. 592; Kirkland v. Calhoun, 248 S.W. 302; Keith v. Keith, 97 Mo. 223; Desesbats v. Berquier, 1 Binney, 336; In re Coppock's Estate, 234 P. 258, 39 A. L. R. 1152; Hilton v. Guyot, 159 U.S. 113; Sec. 254, R. S. 1929; United States v. Belmont, 301 U.S. 324; Ghio's Estate, 157 Cal. 552, affirmed 223 U.S. 317. (b) The ancillary probate of the Orth will in Missouri is not affected by any time limitation fixed by the Missouri statutes, as such limitation is repugnant to the existing Treaty between the United States and Germany. Treaty of Oct. 4, 1925, 44 Stat. Vol. III, p. 2132; United States Const., Art. VI, Sec. 2; Missouri v. Holland, 252 U.S. 416; Ware v. Hilton, 3 Dall. 199; Hauenstein v. Lynham, 100 U.S. 483; Asakura v. Seattle, 265 U.S. 332; United States v. Belmont, 301 U.S. 324; Woerner on Administration, p. 28, sec. 19; In re Ghio's Estate, 157 Cal. 552, affirmed 223 U.S. 317. (c) The provisions of the Treaty should be liberally construed, and should be considered to confer every incidental power necessary to the effectuation of its evident intention. Geofroy v. Riggs, 133 U.S. 258; Jordan v. Tashiro, 278 U.S. 123; Tucker v. Alexandroff, 183 U.S. 424; McEvoy v. Wyman, 191 Mass. 276; In re Ross, 140 U.S. 453; Nielsen v. Johnson, 379 U.S. 47; Santovincenzo v. Egan, 284 U.S. 30; Hopkirk v. Bell, 3 Cranch, 454; Farris v. Burchard, 242 Mo. 1; Graham v. Graham, 297 Mo. 290; Woerner on Administration, pp. 701,704, 773; McClure v. Baker, 216 S.W. 1018; Tampa Water Works Co. v. Tampa, 199 U.S. 241; Mayor of Baltimore v. Flack, 64 A. 708; Northern Pac. Ry. Co. v. Barnes, 51 N.W. 386, 2 N.D. 341; 59 C. J., sec. 309, p. 722; Weiss v. Wiener, 279 U.S. 333; Calhoun Co. v. Ajax Co., 182 U.S. 499; Eagan v. Commissioner, 43 F.2d 881; Todok v. Union Bank, 281 U.S. 449. (2) Respondent did not exceed his jurisdiction in accepting an authenticated copy of the will of Babette Orth for probate, inasmuch as the original was necessarily detained by the court of primary jurisdiction. Sec. 254, R. S. 1929; White v. Greenway, 303 Mo. 691, 263 S.W. 104; Kiernan v. Casey, 116 Tenn. 245, 93 S.W. 576; In re Hix, 54 P. I. 610; Isham v. Gibbons, 1 Bradford, 69; Williams, Treatise on Executors, p. 241; Woerner on Administration, p. 742; Vogel v. New York Life Ins. Co., 55 F.2d 205.

OPINION

Douglas, J.

The ultimate question for decision is whether the Treaty between the United States and Germany, although containing no express provision on the point, is to be construed as superseding the statute of this State which limits the time within which a will may be admitted to probate.

The question arises in this way. In the early part of 1931 Dr. Carl Orth of St. Louis died intestate. One of Dr. Orth's heirs was his sister, Babette Orth, who resided in Germany. On October 22, 1931, and before receiving distribution from Dr. Orth's estate, Babette Orth died. It is her estate here which is involved in this case. On November 23, 1931, the probate court for the City of St. Louis appointed George Wyers, a nephew, the administrator of her estate. The only asset of her estate here was her interest in her brother's estate. In due course the estate of Dr. Orth was closed and the share of Babette Orth, amounting to some $ 40,000, was paid to her administrator who now holds her estate. On April 25, 1935, more than three years after this administration was begun, a copy of the will of Babette Orth, executed in Germany, was presented to the St. Louis Probate Court with a petition stating that the will was valid under the laws of Germany where it was admitted to probate and was in force and effect. The petition further prayed that the entire estate here be turned over to the persons named in the will, three nephews named Kachel, all residing in Germany, as Babette Orth's sole legatees. On January 28, 1936, more than four years after the administration was commenced, a properly authenticated copy of Babette Orth's will together with its proof in Germany was admitted to probate by respondent probate judge.

Thereupon plaintiff, a nephew and heir at law of Babette Orth, but cut out by the will, applied to the St. Louis Circuit Court for a writ of prohibition against the probate judge to prevent him from proceeding under the will, and distributing the estate according to its terms on the ground the probate court had no authority to admit such will to probate because of Section 532, Revised Statutes 1939, Mo. Stat. Ann., sec. 531, p. 324, which bars the probate of a will after the lapse of one year from the date of the first publication of the notice of the granting of letters testamentary on the estate of the testator. The respondent set out in his return that the will was valid under the laws of Germany and consequently was valid for the purpose of passing title to any personalty of the testatrix located in this country; that by the terms of the will the nephews Kachel were entitled to her estate; and that he was bound by the Treaty with Germany to admit the will to probate and was therefore acting within his jurisdiction. The circuit court denied the application for the writ and plaintiff has appealed. No contention has been made about the statute being inapplicable except for the Treaty.

At the outset it is important to bear in mind the character of this proceeding which raises only the question of the jurisdiction of the probate court in the premise. While our decision may, incidentally, dispose of the controversy between the heirs, that is, should the nephews Kachel of Germany receive the entire estate as sole legatees under the will, or should they share the estate with the nephews Wyers, residing here, and others of the half blood residing in Germany, under the intestacy laws of Germany; still we are not primarily concerned with these conflicting claims to ownership of the assets of the estate. Some of the cases cited to us are equitable proceedings to adjudge conflicting claims of a somewhat similar nature and cover a wide and inviting field; but this proceeding is confined within the narrow channels which restrict the office of the writ of prohibition as developed from the common law. Our decisions indicate that we regard the remedy by prohibition as preventive, not as corrective. [State ex rel. McNamee v. Stobie, 194 Mo. 14, 92 S.W. 191.]

State laws, of course, must yield to valid treaties...